Opinion
Index No. 654774/2017
12-22-2021
REMORA CAPITAL S.A. and Remora Partners S.A., Plaintiffs, v. Dr. Pierre DUKAN, Marie Dukan, Sacha Dukan, Maya Dukan, Diet Coaching Inc., Duvalec S.A.R.L., and Sedad, S.A.S., Defendants.
Boies Schiller Flexner LLP, New York, NY (Eric Brenner and Sabina Mariella of counsel), for plaintiffs. Kellner Herlihy Getty & Friedman LLP, New York NY (Thomas Vandenabeele of counsel), for defendants.
Boies Schiller Flexner LLP, New York, NY (Eric Brenner and Sabina Mariella of counsel), for plaintiffs.
Kellner Herlihy Getty & Friedman LLP, New York NY (Thomas Vandenabeele of counsel), for defendants.
Gerald Lebovits, J.
In this contract action, this court previously granted the branch of defendants’ motion for summary judgment seeking dismissal of plaintiffs’ claims relating to repayment of a $300,000 loan made by plaintiffs to defendants in 2013. (See Remora Capital S.A. v Dukan , 2021 NY Slip Op 50603[U], at *1-*2 [Sup Ct, NY County June 25, 2021].) Plaintiffs now move to renew and reargue. Plaintiffs’ request for reargument is granted in part. Plaintiffs’ request for renewal is denied.
In its summary-judgment decision, this court agreed with plaintiffs that defendants had breached the parties’ agreement to convert the $300,000 in cash loaned by plaintiffs to defendants into shares in defendant Diet Coaching Inc. (See id. at *1.) This court also held that the proper measure of damages was the difference in the value of the shares as set in the parties’ contract (mid-August 2013) and the value of the shares at the time of defendants’ breach of its obligation to convert the loaned funds into equity to be held by plaintiffs (September 30, 2013); and that plaintiffs had not provided evidence that the value of the shares declined between contract execution and contract breach. (See id. ) This court also held, in the alternative, that plaintiffs did not provide sufficient evidence of the change in the value of the shares between 2013 and 2020 (when defendants belatedly converted the loaned funds into Diet Coaching shares).
In moving for leave to reargue with respect to the proper measure of damages, plaintiffs argue that this court overlooked decisions of the U.S. District Court for the Southern District of New York (applying New York law), cited by plaintiffs to support their preferred damages theory. (See NYSCEF No. 187 at 5-7.) Plaintiffs are mistaken: This court did not overlook that authority, but rather considered it and found it either unpersuasive or inapposite. That plaintiffs continue to disagree with this court's conclusion on that point does not, without more, warrant the grant of leave to reargue.
Plaintiffs’ argument that this court overlooked their proffered authority is based in part on this court's statement in the summary-judgment decision that plaintiffs "cite no New York decision" finding their proffered "measure of damages to be appropriate." (2021 NY Slip Op 50603[U], at *1.) That statement, though, merely observed, accurately, that plaintiffs had not identified any decision of a New York court that would support their position—as distinct from a decision of a federal court applying New York law.
Plaintiffs also contend that even granting this court's conclusion that plaintiffs failed to establish actual damages resulting from defendants’ breach, this court overlooked the legal principle that plaintiffs would still be entitled to nominal damages. Plaintiffs are correct that this court did not consider the possibility that plaintiffs might recover nominal damages. Leave to reargue this issue (and only this issue) is warranted. On reargument, this court concludes that although there are Appellate Division, First Department, decisions suggesting that proof of actual damages is required (see e.g. Viacom Outdoor Inc. v Wixon Jewelers, Inc. , 82 AD3d 604, 604 [1st Dept 2011] ), the better conclusion is instead that plaintiffs may still recover nominal damages even absent actual damages (see e.g. Schleifer v Yellen , 158 AD3d 512, 513 [1st Dept 2018] ). This court therefore vacates its grant of summary judgment to defendants on plaintiffs’ claim relating to the $300,000 loan, but only to the extent of permitting plaintiffs to seek nominal damages on that claim.
Plaintiffs also seek leave to renew this court's alternative holding that plaintiffs did not provide sufficient cognizable evidence of damages even under their own preferred measure of damages, so that plaintiffs may provide additional, more detailed damages evidence. But as plaintiffs candidly acknowledge (see NYSCEF No. 187 at 13 & n 4), plaintiffs already had this additional evidence in hand when briefing the parties’ summary-judgment motions. The evidence therefore cannot constitute a "new fact" warranting renewal. (See Kreisler v B-U Realty Corp. , 198 AD3d 568, 568 [1st Dept 2021] [affirming denial of renewal motion that "failed to assert new facts or a change in the law that would change the prior determination"].)
Plaintiffs contends that this court should nonetheless exercise its discretion to grant renewal because plaintiffs (assertedly) lacked notice that this court would require the kind of damages evidence about the change in value of Diet Coaching that plaintiffs now seek leave to submit. But plaintiffs chose to rest their case for damages on the more limited evidence this court held insufficient—not only in opposing defendants’ motion for summary judgment (see NYSCEF No. 166 at 11-12), but also in plaintiffs’ own motion for summary judgment (see NYSCEF No. 150 at 16). That plaintiffs could have made a stronger, more detailed evidentiary showing under their preferred theory of damages, but chose for their own tactical reasons not to do so, does not constitute a basis for renewal now.
More precisely, plaintiffs suggest this court held sua sponte "that the value of the [Diet Coaching] shares had not changed between 2013 and 2020 or that Plaintiffs could not prove as much at trial." (NYSCEF No. 187 at 11.) But this court's holding was more limited: merely that on the record put before the court at summary judgment , plaintiffs had not provided sufficient evidence of the asserted change in share value (and thus of plaintiffs’ damages) to raise a fact question requiring trial.
Accordingly, for the foregoing reasons it is hereby
ORDERED that the branch of plaintiffs’ motion under CPLR 2221 seeking leave to reargue this court's holding on the proper measure of plaintiffs’ damages with respect to the $300,000 loan is denied; and it is further
ORDERED that the branch of plaintiffs’ motion under CPLR 2221 seeking leave to reargue this court's holding granting summary judgment dismissing plaintiffs’ claim with respect to the $300,000 loan for lack of evidence of actual damages is granted; and it is further
ORDERED that on reargument, this court's dismissal of plaintiffs’ claim with respect to the $300,000 loan is modified to the extent of denying defendants’ motion for summary judgment on that claim inasmuch as the claim seeks only nominal damages; and it is further
ORDERED that the branch of plaintiffs’ motion under CPLR 2221 seeking leave to renew this court's alternative holding that plaintiffs failed to submit sufficient evidence of actual damages under plaintiffs’ preferred measure of damages is denied.